TRANSFER AGENCY AGREEMENT
Agreement made as of the 27th day of February 1987 between
the gabelli growth fund, a Massachusetts business trust organized
and existing under the laws of the Commonwealth of Massachusetts,
having its principal office and place of business at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as the
"Fund"), and the bank of new york, a New York corporation
authorized to do a banking business, having its principal office
and place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter referred to as the "Transfer Agents").
witnesseth:
That for and in consideration of the mutual promises
hereinafter set forth, the parties hereto covenant and agree as
follows:
article I
definitions
Whenever used in this Agreement, the following words and
phrases shall have the following meanings:
1. "Approved Institution" shall mean an entity so named
in a Certificate. From time to time the Fund may amend a
previously delivered Certificate by delivering to the Transfer
Agent a Certificate naming an additional entity or deleting any
entity named in a previously delivered Certificate.
2. "Certificate" shall mean any notice, instruction, or
other instrument in writing, authorized or required by this
Agreement to be given to the Transfer Agent by the Fund which is
signed by any Officer, as hereinafter defined, and actually
received by the Transfer Agent.
3. "Custodian" shall mean The Bank of New York, as
custodian under the terms and conditions of the Custody Agreement
between The Bank of New York and the Fund, or its successor(s).
4. "Fund Business Day" shall be deemed to be each day on
which the New York Stock Exchange, Inc. is open for trading.
5. "Officer" shall be deemed to be the Fund's Chairman of
the Board, the Fund's President, any Vice President of the Fund,
the Fund's Secretary or Clerk, the Fund's Treasurer, the Fund's
Controller, any Assistant Controller of the Fund, any Assistant
Treasurer of the Fund, and any other person duly authorized by the
Board of Trustees of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the Fund and
named in the Certificate annexed hereto as Appendix A, as such
Certificate may be amended from time to time, and any person
reasonably believed by the Transfer Agent to be such a person.
6. "Series" shall mean the various portfolios of the Fund
as described from time to time in the current and effective
Prospectus.
7. "Shares" shall mean all or any part of each class of
the shares of beneficial interest of the Fund listed in the
Certificate annexed hereto as Appendix B, as may be amended, from
time to time, which from time to time are authorized and/or issued
by the Fund.
8. "Prospectus" shall mean the last Fund prospectus
actually received by the Transfer Agent from the Fund with respect
to which the Fund has indicated a registration statement under the
Federal Securities Act of 1933 has become effective, including the
Statement of Additional Information incorporated by reference
therein.
9. "Transfer Agent" shall mean The Bank of New York, as
transfer agent and dividend disbursing agent under the terms and
conditions of this Agreement, its successor(s) or assign(s).
article ii
appointment of transfer agent
1. The Fund hereby constitutes and appoints the Transfer
Agent as transfer agent of all the Shares of the Fund and as
dividend disbursing agent during the period of this Agreement.
2. The Transfer Agent hereby accepts appointment as
transfer agent and dividend disbursing agent and agrees to perform
the duties thereof as hereinafter set forth.
3. In connection with such appointment, the Fund shall
deliver the following documents to the Transfer Agent:
(a) A certified copy of the Declaration of Trust of
the Fund and all amendments thereto;
(b) A certified copy of the By-Laws of the Fund;
(c) A certified copy of a resolution of the Trustees
of the Fund appointing the Transfer Agent and authorizing the
execution of this Transfer Agency Agreement;
(d) A Certificate signed by the Secretary or Clerk
of the Fund specifying with respect to each Series: the number of
authorized Shares, the number of such authorized Shares issued,
and the number of such authorized Shares issued and currently
outstanding, the names and specimen signatures of the Officers of
the Fund, and the name and address of the legal counsel for the
Fund;
(e) Specimen Share certificates for each class of
Shares in the form approved by the Board of Trustees of the Fund,
together with a certificate signed by the Secretary or Clerk of
the Fund as to such approval.
(f) Copies of the Fund's Registration Statement, as
amended to date, and the most recently filed Post-Effective
Amendment thereto, filed by the Fund with the Securities and
Exchange Commission under the Securities Act of 1933, as amended,
and u under the Investment Company Act of 1940, as amended,
together with any applications filed in connection therewith; and
(g) Opinion of counsel for the Fund with respect to
the validity of the authorized and outstanding Shares, whether
such Shares are fully paid and non-assessable and the status of
such Shares under the Securities Act of 1933, as amended, and any
other applicable federal law or regulation (i.e., if subject to
registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the
specific grounds therefor).
4. The Fund shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates and from time to
time will renew such supply upon request of the Transfer Agent.
Such blank Share certificates shall be properly signed, by
facsimile or otherwise, by Officers of the Fund authorized by law
or by the by-laws to sign Share certificates, and, if required,
shall bear the seal or facsimile thereof.
article III
authorization and issuance of shares
1. The Fund shall deliver to the Transfer Agent the
following documents on or before the effective date of any
increase or decrease in the total number of Shares authorized to
be issued:
(a) A certified copy of the amendment to the
Declaration of Trust giving effect to such increase or decrease;
(b) In the case of an increase, an opinion of
counsel for the Fund with respect to the validity of the Shares of
the Fund and the status of such Shares under the Securities Act of
1933, as amended, and any other applicable federal law or
regulation (i.e., if subject to registration, that they have been
registered and that the Registration Statement has become
effective or, if exempt, the specific grounds therefor); and
(c) In the case of an increase, if the appointment
of the Transfer Agent was theretofore expressly limited, a
certified copy of a resolution of the Board of Trustees of the
Fund increasing the authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares of the
Fund pursuant to stock dividends or stock splits, etc., and prior
to any reduction in the number of shares outstanding, the Fund
shall deliver the following documents to the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by
the Board of Trustees and/or the shareholders of the Fund
authorizing such issuance of additional Shares of the Fund or such
reduction, as the case may be, and
(b) An opinion of counsel for the Fund with respect
to the validity of the Shares of the Fund and the status of such
Shares under the Securities Act of 1933, as amended, and any other
applicable federal law or regulation (i.e., if subject to
registration, that they have been registered and that the
Registration Statement has become effective, or, if exempt, the
specific grounds therefor).
article iv
recapitalization or capital adjustment
1. In the case of any negative stock split,
recapitalization or other capital adjustment requiring a change in
the form of Share certificates, the Transfer Agent will issue
Share certificates in the new form in exchange for, or upon
transfer of, outstanding Share certificates in the old form, upon
receiving:
(a) A Certificate authorizing the issuance of Share
certificates in the new form;
(b) A certified copy of any amendment to the
Declaration of Trust with respect to the change;
(c) Specimen Share certificates for each class of
Shares in the new form approved by the Board of Trustees of the
Fund, with a Certificate signed by the Secretary or Clerk of the
Fund as to such approval; and
(d) An opinion of counsel for the Fund with respect
to the validity of the Shares in the new form and the status of
such Shares under the Securities Act of 1933, as amended, and any
other applicable federal law or regulation (i.e., if subject to
registration, that the Shares have been registered and that the
Registration Statement has become effective or, if exempt, the
specific grounds therefor).
2. The Fund shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new form, and
from time to time will replenish such supply upon the request of
the Transfer Agent. Such blank Share certificates shall be
properly signed by Officers of the Fund authorized by law or by
the by-laws to sign Share certificates and, if required shall bear
the seal of the Fund or facsimile thereof. The Fund agrees to
indemnify and exonerate, save and hold the Transfer Agent
harmless, from and against any and all claims or demands that may
be asserted against the Transfer Agent with respect to the
genuineness of any Share certificate supplied to the Transfer
Agent pursuant to this section.
article v
issuance, redemption, and transfer of shares
1. (a) The Transfer Agent shall accept with respect to
each Fund Business Day, at such times as are agreed upon from time
to time by the Transfer Agent and the Fund, each (i) purchase
order received from a purchaser, or share-holder, whether or not
an Approved Institution, and (ii) redemption request either
received from a shareholder, whether or not an Approved
Institution, or contained in a Certificate, provided, that (A)
such purchase order or redemption request, as the case may be, is
reasonably believed by the Transfer Agent to be in conformity with
the Fund's purchase and redemption procedures descried in the
Prospectus, and (B) the Transfer Agent has agreed to accept and
act in accordance with such type of purchase order or redemption
request, as the case may be.
(b) The Transfer Agent shall also accept with
respect to each Fund Business Day, at such times as are agreed
upon from time to time by the Transfer Agent and the Fund, a
computer tape consistent in all respects with the Transfer Agent's
tape layout package, as amended from time to time, which is
believed by the Transfer Agent to be furnished by or on behalf of
any Approved Institution.
2. On each Fund Business Day the Transfer Agent shall, as
of the time at which the Fund computes the net asset value of each
Series, issue to, and redeem from, the accounts specified in a
purchase order, redemption request, or computer tape which in
accordance with the Prospectus is effective on such Fund Business
Day the appropriate number of full and fractional Shares based on
the net asset value per Share of such Series specified in an
advice received on such Fund Business Day from the Fund.
Notwithstanding the foregoing, if a redemption specified in a
computer tape is for a dollar value of Shares in excess of the
dollar value of uncertificated Shares in the specified account,
the Transfer Agent shall not effect such redemption in whole or
part, and shall orally advise both the Fund and the Approved
Institution which supplied such tape of such discrepancy.
3. The Transfer Agent shall, as of each Fund Business Day
specified in a Certificate or resolution described in paragraph 1
of succeeding Article VI, issue Shares of a Series, based on the
net asset value per Share of such Series specified in an advice
received from the Fund on such Fund Business Day, in connection
with a reinvestment of a dividend or distribution on Shares of
such Series.
4. On each Fund Business Day the Transfer Agent shall
supply the Fund with a statement specifying with respect to the
immediately preceding Fund Business Day: the total number of
Shares of each Series (including fractional Shares) issued and
outstanding at the opening of business on such day; the total
number of Shares of each Series sold to The Bank of New York, as
agent for the purchasers, on such day, pursuant to preceding
paragraph 2 of this Article; the total number of Shares of each
Series redeemed by The Bank of New York, as agent for the
respective redeeming shareholders, on such day; the total number
of Shares of each Series, if any, sold The Bank of New York, as
agent for shareholders, on such day pursuant to preceding
paragraph 3 of this Article, and the total number of Shares of
each Series issued and outstanding. On the same day such
statement is received by the Fund, the Fund shall confirm the
information contained therein by delivering to the Transfer Agent
a Certificate with respect to the same.
5. In connection with each purchase and each redemption
of Shares, the Transfer Agent shall send such statements as are
described in the Prospectus. If the Prospectus indicates that
certificates for Shares are available, and if specifically
requested in writing by any shareholder, or if otherwise required
hereunder, the Transfer Agent will countersign, issue and mail by
not less than first class insured mail, to such shareholder at the
address set forth in the records of the Transfer Agent, a Share
certificate for any full Shares requested.
6. As of each Fund Business Day the Transfer Agent shall
furnish the Custodian with an advice setting forth the number and
dollar amount of Shares to be redeemed on such Fund Business Day
in accordance with paragraph 2 of this Article.
7. Upon receipt of moneys paid to it by the Custodian in
connection with a redemption of Shares, the Transfer Agent shall
cancel the redeemed Shares and after making appropriate deduction
for any withholding of taxes required of it by applicable law (a)
in the case of a redemption of Shares pursuant to a redemption
described in preceding paragraph 1(a) of this Article, make
payment in accordance with the Fund's redemption and payment
procedures described in the Prospectus, and (b) in the case of a
redemption of Shares pursuant to a computer tape described in
preceding paragraph 1(b) of the Article, make payment by directing
a federal funds wire order to the account previously designated by
the Approved Institution specified in said computer tape.
8. The Transfer Agent shall not be required to issue any
Shares after it has received from an Officer of the Fund or from
an appropriate federal or state authority written notification
that the sale of Shares has been suspended or discontinued, and
the Transfer Agent shall be entitled to rely upon such written
notification.
9. Upon the issuance of any Shares in accordance with the
is Agreement the Transfer Agent shall not be responsible for the
payment of any original issue or other taxes required to be paid
by the Fund in connection with such issuance of any Shares.
10. Shares which are subject to restriction on transfer or
redemption (including, without limitation, Shares acquired
pursuant to a restrictive investment representation, Shares held
by controlling persons, Shares subject to shareholder's
agreements, etc.), other than the general restrictions on the
transferability of the shares described in the Prospectus, must be
issued in Share certificate form and must be stamped on the face
thereof with a legend describing the extent and conditions of the
restriction or referring to the source of such restriction, and
shall be so issued and so legended by the Transfer Agent only if
the Fund so directs in a Certificate. Legended Shares may not be
transferred to redeemed except upon receipt by the Transfer Agent
of an opinion of counsel for the Fund stating that such transfer
or redemption is in accordance with applicable law, and may be
properly effected. The Transfer Agent shall be entitled to rely
upon such opinion and shall be indemnified by the Fund for any
transfer or redemption made in reliance upon any such opinion.
11. The Transfer Agent shall accept a computer tape
consistent with the Transfer Agent's tape layout package, as
amended from time to time, which is reasonably believed by the
Transfer Agent to be furnished by or on behalf of any Approved
Institution and is represented to be instructions with respect to
the transfer of Shares from one account of such Approved
Institution to another such account, and shall effect the
transfers specified in said computer tape.
12. (a) Except as otherwise provided in sub-paragraph
(b) of this paragraph and in paragraph 13 of this Article, Shares
will be transferred to redeemed upon presentation to the Transfer
Agent of Share certificates or instructions properly endorsed for
transfer or redemption, accompanied by such documents as the
Transfer Agent deems necessary to evidence the authority of the
person making such transfer or redemption, and bearing
satisfactory evidence of the payment of stock transfer taxes. In
the case of small estates, where no administration is
contemplated, the Transfer Agent may, when furnished with an
appropriate surety bond, and without further approval of the Fund,
transfer or redeem Shares registered in the name of a decedent
where the current market value of the Shares being transferred
does not exceed such amount as may from time to time by prescribed
by various states. The Transfer Agent reserves the right to
refuse to transfer or redeem Shares until it is satisfied that the
endorsement on the stock certificate or instructions is valid and
genuine, and for that purpose it will require, unless otherwise
instructed by an authorized officer of the Fund, a guarantee of
signature by a member firm of a National Securities Exchange or by
a bank or trust company acceptable to the Transfer Agent. The
Transfer Agent also reserves the right to refuse to transfer or
redeem Shares until it is satisfied that the requested transfer or
redemption is legally authorized, and it shall incur no liability
for the refusal, in good faith, to make transfers or redemptions
which the Transfer Agent, in its judgment, deems improper or
unauthorized, or until it is satisfied that there is no basis to
any claims adverse to such transfer or redemption. The Transfer
Agent may, in effecting transfers and redemptions of Shares, rely
upon those provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as
the same may be amended from time to time, applicable to the
transfer of securities, and the Fund shall indemnify the Transfer
Agent for any act done or omitted by it in good faith in reliance
upon such laws.
(b) Notwithstanding the foregoing or any other
provision contained in this Agreement to the contrary, the
Transfer Agent shall be fully protected by the Fund in not
requiring any instruments, documents, assurances, endorsements or
guarantees, including, without limitation, any signature
guarantees, in connection with a redemption, or transfer, of
Shares whenever the Transfer Agent reasonably believes that
requiring the same would be inconsistent with the transfer and
redemption procedures as described in the Prospectus.
13. Notwithstanding any provision contained in this
Agreement to the contrary, the Transfer Agent shall not be
required or expected to require, as a condition to any transfer of
any Shares pursuant to paragraph 11 of this computer tape
described in this Article, any documents, including, without
limitation, any documents of the kind described in sub-paragraph
(a) of paragraph 12 of this Article, to evidence the authority of
the person requesting the transfer or redemption and/or the
payment of any stock transfer taxes, and shall be fully protected
in acting in accordance with the applicable provisions of this
Article.
14. (a) As used in this Agreement, the terms "computer
tape" and "computer tape believed by the Transfer Agent to be
furnished by an Approved Institution", shall include any tapes
generated by the Transfer Agent to reflect information believed by
the Transfer Agent to have been inputted by an Approved
Institution, via a remote terminal or other similar link, into a
data processing, storage, or collection system, or similar system
(the "System"), located on the Transfer Agent's premises. For
purposes of paragraph 1 of this Article, such a computer tape
shall be deemed to have been furnished at such times as are agreed
upon from time to time by the Transfer Agent and Fund only if the
information reflected thereon was inputted into the System at such
times as are agreed upon from time to time by the Transfer Agent
and the Fund.
(b) Nothing contained in this Agreement shall
constitute any agreement or representation by the Transfer Agent
to permit, or to agree to permit, any Approved Institution to
input information into a System.
article vi
dividends and distributions
1. The Fund shall furnish to the Transfer Agent a copy of
a resolution of its Board of Trustees, certified by the Secretary
or Clerk or any Assistant Secretary or Assistant Clerk, either (i)
setting forth with respect to a Series the date of the declaration
of a dividend or distribution, the date of accrual or payment, as
the case may be, thereof, the record date as of which Shareholders
entitled to payment, or accrual, as the case may be, shall be
determined, the amount per Share of such dividend or distribution,
the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to
the Transfer Agent on such payment date, of (ii) authorizing the
declaration of dividends and distributions on a daily or other
periodic basis and authorizing the Transfer Agent to rely on a
Certificate setting forth the information described in subsection
(i) of this paragraph.
2. Upon the payment date specified in such Certificate or
resolution, as the case may be, the Fund shall, in the case of a
cash dividend or distribution, cause the Custodian to pay to the
Transfer Agent an amount of cash, if any, sufficient for the
Transfer Agent to make the payment, if any, specified in such
Certificate or resolution, as the case may be, to the Shareholders
of record as of such payment date. The Transfer Agent will, upon
receipt of any such cash, make payment of such cash dividends or
distributions to the Shareholders of record as of the record date
by: (i) mailing a check, payable to the registered shareholder,
to the address of record or dividend mailing address, or (ii)
wiring such amounts to the accounts previously designated by an
Approved Institution, as the case may be. The Transfer Agent
shall not be liable for any improper payments made in accordance
with a Certificate or resolution described in the preceding
paragraph. If the Transfer Agent shall not receive from the
Custodian sufficient cash to make payments of any cash dividend or
distribution to all shareholders of the Fund as of the record
date, the Transfer Agent shall, upon notifying the Fund, withhold
payment to all shareholders of record as of the record date until
sufficient cash is provided to the Transfer Agent.
3. It is understood that the Transfer Agent shall in no
way be responsible for the determination of the rate or form of
dividends or capital gain distributions due to the shareholders.
4. It is understood that the Transfer Agent shall file
such appropriate information returns concerning the payment of
dividends and capital gain distributions with the proper federal,
state and local authorities as are required by law to be filed by
the Fund but shall in no way be responsible for the collection or
withholding of taxes due on such dividends or distributions due to
shareholders, except and only to the extent, required of it by
applicable law.
article vii
concerning the fund
1. The Fund shall promptly deliver to the Transfer Agent
written notice of any change in the Officers authorized to sign
Share certificates, Certificates, notifications or requests,
together with a specimen signature of each new Officer. In the
event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share
certificates shall die, resign or be removed prior to issuance of
such Share certificates, the Transfer Agent may issue such Share
certificates of the Fund notwithstanding such death, resignation
or removal, and the Fund shall promptly deliver to the Transfer
Agent such approval, adoption or ratification as may be required
by law.
2. Each copy of the Declaration of Trust of the Fund and
copies of all amendments thereto shall be certified by the
Secretary of Sate (or other appropriate official) of the state of
organization, and if such Declaration of Trust and/or amendments
are required by law also to be filed with a county or other
officer or official body, a certificate of such filing shall be
filed with a certified copy submitted to the Transfer Agent. Each
copy of the By-Laws and copies of all amendments thereto, and
copies of resolutions of the Board of Trustees of the Fund, shall
be certified by the Secretary or Clerk of the Fund under the seal.
3. It shall be the sole responsibility of the Fund to
deliver to the Transfer Agent the Fund's currently effective
Prospectus and, for purposes of this Agreement, the Transfer Agent
shall not be deemed to have notice of any information contained in
such Prospectus until it is actually received by the Transfer
Agent.
article viii
concerning the transfer agent
1. The Transfer Agent shall not be liable and shall be
fully protected in acting upon any computer tape, writing or
document reasonably believed by it to be genuine and to have been
signed or made by the proper person or persons and shall not be
held to have any notice of any change of authority of any person
until receipt of written notice thereof from the Fund or such
person. It shall also be protected in processing Share
certificates which it reasonably believes to bear the proper
manual or facsimile signatures of the Officers of the Fund and the
proper countersignature of the Transfer Agent.
2. The Transfer Agent may establish such additional
procedures, release and regulations governing the transfer or
registration of certificates of stock as it may deem advisable and
consistent with such rules and regulations generally adopted by
bank transfer agents.
3. The Transfer Agent shall keep such records as are
specified in Appendix C hereto in the form and manner, and for
such period, as it may deem advisable but not inconsistent with
the rules and regulations of appropriate government authorities,
in particular Rules 31a-2 and 31a-3 under the federal Investment
Company Act as amended from time to time. The Transfer Agent may
deliver to the Fund from time to time at its discretion, for
safekeeping or disposition by the Fund in accordance with law,
such records, papers, Share certificates which have been canceled
in transfer, exchange or redemption, or other documents
accumulated in the execution of its duties as such Transfer Agent,
as the Transfer Agent may deem expedient, other than those which
the Transfer Agent is itself required to maintain pursuant to
applicable laws and regulations, and the Fund shall assume all
responsibility for any failure thereafter to produce any record,
paper, canceled Share certificate, or other document so returned,
if and when required. The records specified in Appendix C hereto
maintained by the Transfer Agent pursuant to this paragraph 3,
which have not been previously delivered to the Fund pursuant to
the foregoing provisions of this paragraph 3, shall be considered
to be the property of the Fund, shall be made available upon
request for inspection by the officers, employees, and auditors of
the Fund, and records shall be delivered to the Fund upon request
and in any event upon the date of termination of this Agreement,
as specified in Article IX of this Agreement, in the form and
manner kept by the Transfer Agent on such date of termination or
such earlier date as may be requested by the Fund.
4. The Transfer Agent may employ agents or attorneys-in-
fact at the expense of the Fund, and shall not be liable for any
loss or expense arising out of, or in connection with, the actions
or omissions to act of its agents or attorneys-in-fact so long as
the Transfer Agent acts in good faith and without negligence or
willful misconduct in connection with the selection of such agents
or attorneys-in-fact.
5. The Transfer Agent shall not be liable for any loss or
damage, including counsel fees, resulting from its actions or
omissions to act or otherwise, except for any loss or damage
arising out of its own failure to act in good faith, negligence or
willful misconduct.
6. The Fund shall indemnify and exonerate, save and hold
harmless the Transfer Agent from and against any and all claims
(whether with or without basis in fact or law), demands, expenses
(including attorney's fees) and liabilities of any and every
nature which the Transfer Agent may sustain or incur or which may
be asserted against the Transfer Agent by any person by reason of
or as a result of any action taken or omitted to be taken by the
Transfer Agent in good faith and without negligence or willful
misconduct of in reliance upon (i) any provision of this
Agreement; (ii) the Prospectus; (iii) any instruction or order
including, without limitation, any computer tape reasonably
believed by the Transfer Agent to have been received from an
Approved Institution; (iv) any instrument, order or Share
certificate reasonably believed by it to be genuine and to be
signed, countersigned or executed by any duly authorized Officer
of the Fund; (v) any Certificate or other instructions of an
Officer; of (vi) any opinion of legal counsel for the Fund or the
Transfer Agent. The Fund shall indemnify and exonerate, save and
hold the Transfer Agent harmless from and against any and all
claims (whether with or without basis in fact or law), demands,
expenses (including attorney's fees) and liabilities of any and
every nature which the Transfer Agent may sustain or incur or
which may be asserted against the Transfer Agent by any person by
reason of or as a result of any action taken or omitted to be
taken by the Transfer Agent in good faith in connection with its
appointment or in reliance upon any law, act, regulation or any
interpretation of the same even though such law, act or regulation
may thereafter have been altered, changed, amended or repealed.
7. Specifically, but not by way of limitation, the Fund
shall indemnify and exonerate, save and hold the Transfer Agent
harmless from and against any and all claims (whether with or
without basis in fact or law), demands, expenses (including
attorney's fees) and liabilities of any and every nature which the
Transfer Agent may sustain or incur or which may be asserted
against the Transfer Agent by any person in connection with the
genuineness of a Share certificate, the Transfer Agent's capacity
and authorization to issue Shares and the form and amount of
authorized Shares.
8. Notwithstanding the foregoing, the Transfer Agent
shall be liable to the Fund with respect to any redemption check
which the Transfer Agent pays on which the signature of the drawer
is forged, but only to the extent of the lesser of (a) the amount
of such redemption check minus $2,500.00 and (b) the amount of
insurance proceeds received by the Transfer Agent with respect to
such redemption check and only if, and for so long as, each of the
following conditions is satisfied: (i) insurance with respect to
Fund redemption checks is maintained by the Transfer Agent, and
(ii) the Fund pays to the Transfer Agent monthly the amount which
the Transfer Agent determines to be the Fund's pro rata share of
the cost of such insurance coverage. The Fund agrees that the
insurance may be discontinued or canceled without any prior
notice, and that the Transfer Agent shall at all times have the
absolute right, without any prior notice to the Fund, to cease to
maintain such insurance, and the Transfer Agent agrees to notify
the Fund promptly upon canceling or discontinuing any such
insurance or upon learning of any such cancellation or
discontinuance. In the event such insurance is not maintained, or
in the event the Fund does not pay monthly to the Transfer Agent
the amount which the Transfer Agent determines to be the Fund's
pro rate share of the cost of such insurance coverage, the
Transfer Agent shall not be liable for any loss or damage,
including counsel fees, resulting from its paying or not paying
any redemption check, unless such loss or damage arises o
9. At any time the Transfer Agent may apply to an Officer
of the Fund for written instructions with respect to any matter
arising in connection with the Transfer Agent's duties and
obligations under this Agreement, and the Transfer Agent shall not
be liable for any action taken or permitted by it in good faith in
accordance with such written instructions. Such application by
the transfer Agent for written instructions from an Officer of the
Fund may, at the option of the Transfer Agent, set forth in
writing any action proposed to be taken or omitted by the Transfer
Agent with respect to its duties or obligations under this
Agreement and the date on and/or after which such action shall be
taken, and the Transfer Agent shall not be liable for any action
taken or omitted in accordance with a proposal included in any
such application on or after the date specified therein unless,
prior to taking or omitting any such action, the Transfer Agent
has received written instructions in response to such application
specifying the action to be taken or omitted. The Transfer Agent
may consult counsel to the Fund, or its own counsel, at the
expense of the Fund and shall be fully protected with respect to
anything done or omitted by it in good faith in accordance with
the advice or opinion of counsel to the Fund or its own counsel.
10. When mail is used for delivery of non-negotiable Share
certificates, the value of which does not exceed the limits of the
Transfer Agent's Blanket Bond, the Transfer Agent shall send such
non-negotiable Share certificates by first class mail, and such
deliveries will be covered while in transit by the Transfer
Agent's Blanket Bond. Non-negotiable Share certificates, the
value of which exceed the limits of the Transfer Agent's Blanket
Bond, will be sent by insured registered mail. Negotiable Share
certificates will be sent by insured registered mail. The
Transfer Agent shall advise the Fund of any Share certificates
returned as undelivered after being mailed as herein provided for.
11. The Transfer Agent may issue new Share certificates in
place of Share certificates represented to have been lost, stolen,
or destroyed upon receiving instructions in writing from an
Officer and indemnity satisfactory to the Transfer Agent. Such
instruction from the Fund shall be in such form as approved by the
Board of Trustees of the Fund in accordance with the provisions of
law or of the By-Laws of the Fund governing such matters. If the
Transfer Agent receives written notification from the owner of the
lost, destroyed, or stolen Share certificate within a reasonable
time after he has notice of it, the Transfer Agent shall promptly
notify the Fund and shall act pursuant to written instructions
signed by an Officer. If the Fund receives such written
notification from the owner of the lost, destroyed or stolen Share
certificate within a reasonable time after he has notice of it,
the Fund shall promptly notify the Transfer Agent and the Transfer
Agent shall act pursuant to written instructions signed by an
Officer. The Transfer Agent shall not be liable for any act done
or omitted by it pursuant to the written instructions described
herein. The Transfer Agent may issue new Share certificates in
exchange for, and upon surrender of, mutilated Share certificates.
12. The Transfer Agent will issue and mail subscription
warrants for Shares of beneficial interest, Shares representing
stock dividends, exchanges or splits, or act as conversion agent
upon receiving written instructions from an Officer and such other
documents as the Transfer Agent may deem necessary.
13. The Transfer Agent will supply shareholder lists to
the Fund from time to time upon receiving a request therefor from
an Officer of the Fund.
14. In case of any requests or demands for the inspection
of the shareholder records of the Fund, the Transfer Agent will
endeavor to notify the Fund and to secure instructions from an
Officer as to such inspection. The Transfer Agent reserves the
right, however, to exhibit the Shareholder records to any person
whenever it receives an opinion from its counsel that there is a
reasonable likelihood that the Transfer Agent will be held liable
for the failure to exhibit the shareholder records to such person.
15. At the request of an Officer, the Transfer Agent will
address and mail such appropriate notices to shareholders as the
Fund may direct.
16. Notwithstanding any of the foregoing provisions of
this Agreement, the Transfer Agent shall be under no duty or
obligation to inquire into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares,
the sufficiency of the amount to be received therefor, or the
authority of the Approved Institution or of the Fund, as the case
may be, to request such sale or issuance;
(b) The legality of a transfer of Shares, or of a
redemption of any Shares, the propriety of the amount to be paid
therefor, or the authority of the Approved Institution or of the
Fund, as the case may be, to request such transfer or redemption;
(c) The legality of the declaration of any dividend
by the Fund, or the legality of the issue of any Shares in payment
of any stock dividend; or
(d) The legality of any recapitalization or
readjustment of the Shares.
17. The Transfer Agent shall be entitled to receive and
the Fund hereby agrees to pay to the Transfer Agent for its
performance hereunder, including its performance of the duties and
functions set forth in Appendix C hereto, (i) its reasonable out-
of-pocket expenses (including legal expenses and attorney's fees)
incurred in connection with this Agreement and its performance
hereunder and (ii) such compensation as may be agreed upon in
writing from time to time by the Transfer Agent and the Fund.
18. The Transfer Agent shall have no duties or
responsibilities whatsoever except such duties and
responsibilities as are specifically set forth in this Agreement,
and no covenant or obligation shall be implied in this Agreement
against the Transfer Agent.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date
of such termination, which shall be not less than 90 days after
the date of receipt of such notice. In the event such notice is
given by the Fund, it shall be accompanied by a copy of a
resolution of the Board of Trustees of the Fund, certified by the
Secretary or Clerk or any Assistant Secretary or Assistant Clerk,
electing to terminate this Agreement and designating a successor
transfer agent or transfer agents. In the event such notice is
given by the Transfer Agent, the Fund shall, on or before the
termination date, deliver to the Transfer Agent a copy of a
resolution of its Board of Trustees certified by the Secretary or
Clerk or any Assistant Secretary or Assistant Clerk designating a
successor transfer agent or transfer agents. In the absence of
such designation by the Fund, the Transfer Agent may designate a
successor transfer agent. If the Fund fails to designate a
successor transfer agent and if the Transfer Agent is unable to
find a successor transfer agent, the Fund shall, upon the date
specified in the notice of termination of this Agreement and
delivery of the records maintained hereunder, be deemed to be its
own transfer agent and the Transfer Agent shall thereby be
relieved of all duties and responsibilities pursuant to this
Agreement.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees that prior to effecting any change in
the Prospectus which would increase or alter the duties and
obligations of the Transfer Agent hereunder, it shall advise the
Transfer Agent of such proposed change at least 30 days prior to
the intended date of the same, and shall proceed with such change
only if it shall have received the written consent of the Transfer
Agent thereto.
2. Any notice or other instrument in writing, authorized
or required by this Agreement to be given to the Fund shall be
sufficiently given if addressed to the Fund and mailed or
delivered to it at its office at the address first above written,
or at such other place as the Fund may from time to time designate
in writing.
3. Any notice or other instrument in writing, authorized
or required by this Agreement to be given to the Transfer Agent
shall be sufficiently given if addressed to the Transfer Agent and
mailed or delivered to it at its office at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other place as the Transfer
Agent may from time to time designate in writing.
4. This Agreement may not be amended or modified in any
manner except by a written agreement executed by both parties with
the formality of this Agreement, and, except for an amendment to
Appendix B or Appendix C hereto, authorized or approved by a
resolution of the Board of Trustees of the Fund.
5. This Agreement shall extend to and shall be binding
upon the parties hereto, and their respective successors and
assigns; provided, however, that this Agreement shall not be
assignable by the Fund without the written consent of the Transfer
Agent.
6. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
7. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original; but
such counterparts shall, together, constitute only one instrument.
8. The provisions of this Agreement are intended to
benefit only the Transfer Agent and the Fund, and no rights shall
be granted to any other person by virtue of this Agreement.
9. A copy of the Declaration of Trust of the Fund is on
file with the Secretary of The Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf
of the Board of Trustees of the Fund as Trustees and not
individually and that the obligations of this instrument are not
binding upon the Board of Trustees or shareholders individually
but are binding only upon the assets and property of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective Officers, thereunto
duly authorized and their respective seals to be hereunto affixed,
as of the day and year first above written.
THE GABELLI GROWTH FUND
By:
▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President
Attest:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
THE BANK OF NEW YORK
By:
Attest:
STATE OF NEW YORK
COUNTY OF NEW YORK
On this _____________ day of ____________________, 198___,
before me personally appeared __________________________ to me
known, who, being duly sworn, said that he/she is a
______________________ of THE BANK OF NEW YORK, a corporation
described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and
that he/she signed his/her name thereto by like authority.
Notary Public
STATE OF _________________
COUNTY OF _______________
On this 2nd day of March, 1987, before me personally
appeared ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ to me known, who, being by me
duly sworn, said that he/she is an Executive Vice President of The
Gabelli Growth Fund, the Massachusetts business trust described in
and which executed the foregoing instrument; that he/she knows the
seal of said trust; that the seal affixed to said instrument is
such seal; that it was so affixed by authority of the Trustees of
said trust, and that he/she signed his/her name thereto by like
authority.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Notary Public
TRANSFER AGENCY AGREEMENT
APPENDIX A
The undersigned, being the Executive Vice President and
Secretary of The Gabelli Growth Fund, a Massachusetts Business
Trust (the "Fund"), do certify that:
The following individuals have been duly authorized by the
Board of Trustees of the Fund in conformity with the Fund's
Declaration of Trust and By-Laws to execute any Certificate,
instruction, notice or other instrument, including an amendment to
Appendix B hereto, or to give oral advices on behalf of the Fund,
and the signature set forth opposite their respective names and
their true and correct signatures:
Name Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Dated: February 27, 1987
▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
TRANSFER AGENCY AGREEMENT
APPENDIX B
The undersigned, being the Executive Vice President and
Secretary of The Gabelli Growth Fund, a Massachusetts Business
trust (the "Fund"), do certify that:
The following is a list of the Series of the Fund issued
and/or authorized by the Fund as of the date of this Transfer
Agreement:
An indefinite number of shares of beneficial interest of the Fund
("Shares"), having par value of $.01 per share, are authorized;
10,000 shares have been issued to Gabelli Fund, Inc., a Delaware
Corporation having its principal office and place of business at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇. As of the date
hereof there are no other series of Fund Shares.
Dated: February 27, 1987
▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
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